THE average number of cases registered under the Unlawful Activities (Prevention) Act (‘UAPA’) per year by the National Investigation Agency (‘NIA’) during the United Progressive Alliance regime during its second term in power from 2009 till 2014 is 13. In contrast, during the National Democratic Alliance regime, from May 2014 till present, the average number of cases registered per year is 34.
This contrast in figures, reported in a data-based, meticulously-researched report, brought out by the human rights body, the People’s Union for Civil Liberties (‘PUCL’), clearly shows that during the Modi era, there is an increasing tendency to use the UAPA as the chosen legal weapon.
The report, UAPA: Criminalising dissent and state terror: Study of UAPA abuse in India, 2009-2022, was authored by PUCL General Secretary Dr. V. Suresh, Madhura SB and Lekshmi Sujatha, and published on September 28.
The data compiled by the PUCL shows that the average figure was as high as 46 in 2018, while it declined to 38 last year. This year, the average number has so far been estimated as 24. The PUCL has mainly drawn the data from the NIA website.
Out of all the UAPA cases handled by the NIA, 41 cases, or 12 per cent, were registered suo motu by the NIA, whereas 316 cases, representing 88 per cent of the cases, were transferred from state investigating agencies to the NIA.
On the validity of the huge number of transfer cases, PUCL’s report says: “It is a moot question as to whether the state governments were consulted or they agreed to these transfers. The validity of these transfers from the state police to the NIA is also suspect since a high number of these transferred cases were not even remotely connected to national security or threat to sovereignty or involved any violence”.
As an illustration of its claim, PUCL’s report refers to a 2021 NIA case from Tamil Nadu. In this case, a man was arrested in Madurai under Section 13 of the UAPA for a Facebook post on August 15, 2019 in which he asked whether India had really got independence to celebrate August 15 as Independence Day. The case, filed by the Tallakulam police in Madurai, was abruptly transferred to the NIA by the Union Government in 2021.
According to the report, of the 357 UAPA cases handled by the NIA, Section 18 of the Act, which deals with punishment for conspiracy, was invoked in 238 cases. This was followed by resort to Section 20, which deals with punishment for being a member of terrorist gang or organisation, in 187 cases. Section 16, which deals with punishment for a terrorist act, was used in 169 cases. Section 13, which deals with punishment for unlawful activities, was invoked in 112 cases.
On section 18 of the Act, the PUCL report suggests that it is an overbroad, sweeping and loosely worded provision that permits arbitrary use to rope in anyone the police want to implicate in any case.
Citing the Supreme Court’s judgment in Shaheen Welfare Association versus Union of India (1996), in which the court had undertaken a four-fold classification of undertrial prisoners under the erstwhile Terrorist and Disruptive Activities (Prevention) Act, 1987 (‘TADA’), the PUCL report suggests a similar graded criterion to classify undertrial prisoners in existing UAPA cases, in order to consider their cases for grant of bail. According to the Supreme Court’s judgment in Shaheen Welfare Association, the report points out, such graded classification would enable the courts to determine the specific role played by each accused, so that only those classified as ‘hardcore’ could be kept in jail as undertrials.
On section 18’s potential for grave abuse by the police, PUCL’s report highlights that all it requires is an allegation of the conspiracy to commit a terrorist act without any concrete action itself having occurred.
The PUCL’s report reveals that the conviction rate of UAPA cases is an abysmal 2.8 per cent, when the number of persons arrested and convicted is taken into account. Such a poor conviction rate is in conformity with the trend of its preceding anti-terror laws such as TADA and the Prevention of Terrorism Act, 2002 that were repealed, as both were characterised by extremely poor conviction rates.
The report infers that close to 97.2 per cent of the 8,371 persons arrested between 2015 and 2020 (that is, 8,136 persons) actually got acquitted at the end of trials in the UAPA courts. “Such high acquittal rates, only highlights the fact that most of the prosecutions are devoid of merit and did not warrant initiation of any prosecution in the first place, much less under the UAPA”.
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